Melvin Powell took Colorado Springs to small claims court Tuesday for $333 ? the cost of replacing a front tire and alignment after hitting a monster pothole.
The claim was tossed on a technicality but Powell says he will be back. Photo by Monica Mendoza

EDITOR'S NOTE: This story was updated to change the total number of claims.

Melvin Powell paid $333.40 for a front tire and alignment on his 5-month-old car after he hit a pothole near Galley Road.

He went to small claims court Tuesday to try to get the city to pay that bill.

"I was turning into a shopping center, and bam! - I couldn't believe the intensity," Powell said. "My car started immediately pulling to the left. That pothole threw my car out of alignment."

He's not alone.

Since January, there have been 123 claims filed at City Hall by drivers who want Colorado Springs to reimburse them for damage to their automobiles from smacking into potholes. The city has paid two claims and denied 121, city spokeswoman Cindy Aubrey said.

Powell's small claims court case was tossed out by Magistrate Daniel Winograd on a technicality. Powell did not file a proper notice of claim with the city, which means the court had no jurisdiction, Winograd said. Powell's claim was dismissed without prejudice.

He now has about 100 days to file the notice of claim with the city attorney. He said he will.

"It's the principle and the awareness," he said.

The city, which sent a claims adjustor to inspect Powell's car and tire, said it was sorry for his "unfortunate pothole encounter" but the city wasn't paying for the new tire or alignment.

The city is "immune from this claim under the Colorado Governmental Immunity Act," a letter to Powell from city claims adjuster Betsy Myer said.

That act says a governmental entity is entitled to prior notice of such a condition - in this case, the pothole - and a reasonable opportunity to remedy it "before we would be liable for someone's damages."

Powell, the general manager of Vision Works, said he didn't know he had to file an official notice of claim before going to small claims court.

When asked how a resident would file a notice of claim, Aubrey said: "Google Colorado Governmental Immunity Act."

Powell takes issue with the city's defense. He quoted a 2003 case, Tidwell v. City and County of Denver, where the city's sovereign immunity for injury was waived.

Winograd said if Powell files his notice of claim and then refiles his claim in court, he would hear the evidence and case law at that time.

But he cautioned Powell about continuing his case against the city, asking if he really thought he would be teaching the city a lesson on potholes.

"You have to show they knew the pothole was there and they didn't fix it," the judge said.

City streets manager Corey Farkas recently reported the city fixes about 26,000 potholes a year and has a record of fixing a pothole within seven days of it being reported.

This year, Colorado Springs crews could not keep up with the amount of potholes being reported and Mayor Steve Bach asked the City Council to move $2 million from the city's reserve fund to pay for pothole repair. The request was approved, and the repair work is expected to begin this summer.

Meanwhile, Powell said the potholes are dangerous and threaten public safety and he believes he has a case.

"My only fault was driving on Colorado Springs streets," he said.

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Report a Pothole

Citizens can report a pothole using www.GoCoSprings.comcq, an app that allows residents can to report anything from barking dogs to graffiti to potholes, or call the pothole hotline at (719) 385-7623.cq

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HOW TO FILE A NOTICE OF CLAIM

• Include the name and address of the claimant and the name and address of his attorney, if any;

• A concise statement of the factual basis of the claim, including the date, time, place and circumstances of the act, omission or event complained of;

• The name and address of any public employee involved, if known;

• A concise statement of the nature and the extent of the injury claimed to have been suffered; and

• A statement of the amount of monetary damages that is being requested.

• The notice shall be filed with the governing body of the public entity or the attorney representing the public entity. Wynetta Massey is the city attorney for the city of Colorado Springs.